One small concession: As bloggers sometimes do, I was perhaps a bit rash in using the word “lie.” I wouldn’t outright lie in voir dire, though I’m sure Patterico and other opponents of nullification would interpret the misdirection I would use in answering questions to have the same practical effect. I would answer questions in a way that’s not openly false, but that certainly masks what I’d intend to do.

Balko’s stated intent to use Clintonesque “misdirection” instead of “lying” doesn’t make his plan to mislead the court any more admirable.

First, I think Balko overestimates his ability to dodge questions in jury selection. The most fundamental question asked of jurors is whether they can follow the law. They are asked that question under oath. Balko will be asked direct questions under oath like this: are you willing to follow the law? and will you follow the judge’s instructions even if you don’t agree with them? When he knows the answer to these questions is “no,” how is he going to answer these direct questions in a way that constitutes “misdirection” but not “lying”?

Even if he could somehow pull this off, is this truly admirable behavior? I think it’s clear that it isn’t. This morning I used the analogy of police lying under oath about probable cause to ensure the conviction of a truly guilty defendant. Even if the defendant is a truly bad man — say a killer who is certain to kill again if he hits the streets — we can’t tolerate such lies in our system of justice. Would it be better if the officer somehow managed to avoid “lying” but rather employed “misdirection” that gave the court the false impression that the search was legal when it wasn’t? Absolutely not. Witnesses are to tell the whole truth in their testimony, and let the chips fall where they may. Deliberate “misdirection” is not acceptable. The same goes for jurors answering questions in voir dire.

As I said this morning, Balko’s argument — justifying lying to the court under oath to further his agenda — could easily be used by a blogger to justify lying on his blog to advance the same important principles. And I don’t see how it’s any different if it’s “misdirection” rather than lying. I assume Balko would disavow any intent to deliberately misdirect readers on his blog in order to make his arguments. But why? Why is making honest arguments on a blog more important than telling the truth to the court while under oath??

And I am profoundly unimpressed by the argument, advanced by some commenters, to the effect: we’ll start being honest when the system is honest with us — but as long as there are some lying judges or lawyers out there, why then, we have no duty to be honest to the court. That’s pure, naked rationalization of dishonesty. There are a million liars out there in the world, and if you are going to use their lies to justify your own, you have no integrity at all, because you can always find someone out there who has lied.

Deiberate misdirection is little different from lying, and it is intolerable in the justice system. Enough people got sick of Slick Willie and his cute circumlocutions that the derogatory term “Clintonesque” needs no explanation. Balko essentially says he’d be Clintonesque with the court. When you’re under oath, that doesn’t cut it. Furthermore, there’s nothing admirable about being Clintonesque.

P.S. By the way, Balko seems to think he’d be kicked off any jury anyway, regardless of his misdirection. But why? Is he really so famous that every prosecutor in the country knows who he is? If he gets himself in front of a prosecutor who is unfamiliar with his writings, and he misdirects the court and counsel to get on a jury, why wouldn’t he be successful? So this is not necessarily a purely hypothetical situation, as he appears to assume.

[Patterico] does again take a jab at my credibility, implying this time that someone who would mislead to get onto a jury in order to prevent an injustice would also lie on his blog to further the radical libertarian agenda.

No, I simply noted that the logic Balko employs could be used to justify lying on a blog. In a previous post, I said three times that I wasn’t accusing Balko of lying on his blog, but I forgot to say it three times again, so he now accuses me of it.

Whatever. I’m not the guy advocating dishonesty, Balko is. If he chooses to avoid the implications of his proposal in his latest post, that’s his problem, not mine.

His explicit advocacy of dishonestyisn’t winning him any fans, and I’m guessing his refusal to confront my real criticisms head-on aren’t helping his cause much either.

53 Responses to “Balko Backs Off, But Not Much: He Now Says He Wouldn’t Lie Under Oath, He Would Just “Misdirect” the Court Under Oath”

I believe jurors have to swear an oath on a bible. So not only is Balko committing perjury, he’s also sticking his tongue out at God. I believe that if our society is to improve, it must start with ME and move forward from there! I know it’s a novel concept to some, but I’m just weird that way.

Why should I now trust anything written on your blog to be accurate, a.o.t. propaganda designed to further your political beliefs? What assurance do I have that, given your statements, you aren’t just making stuff up? Your word?

Note that my attitude expressed above is that of someone who generally agrees with a libertarian position (a quiet libertarian position that is; I find that many of those who shout the word from the rooftops are more interested in it as a shibboleth than a philosophy).

If you’re even losing those who agree with you, does that not give you pause?

I’m also a Libertarian, and really dislike the association of lying-in-a-good-cause with Libertarianism that Balko has created. Jurors are not supposed to go into court with a pre-recorded verdict. But as with Patterico, I think that in extreme cases, nullification can be exercised in good conscience as the moral thing to do. Where that threshold should be placed is the question. I would place my nullification threshold considerably above that of Balko, but perhaps below that of Patterico. I don’t want to go any further to delineate that threshold, because that would come close to deciding verdicts in advance.

There are way too many lawyers in this country. I claim that we have too many lawyers – by a factor three – and that this is evidence of a diseased system of law.

Some of the larger reasons for the surplus of lawyers are the malignant drug laws. These laws have at least quadrupled, maybe even increased by tenfold, drug addiction and all of the murder and thugery that flow from needing money for drugs or making money off drugs.

The malignancy of the drug laws has seeped into the bones and marrow of the legal system. Legislators who make laws increasingly show, through their votes and their behavior, contempt for the people who live under the laws.

The police, and the judges, and the prosecutors, seek, and get, increased powers to use against the citizens. When confronted with resistance to their encroachments, the police, and the courts, and the prosecutors explain that you, the people, are too dumb to understand; but we,the professionals, now need increased power because of your efforts to resist the powers we already have.

As I said before, or at least tried to imply, it is not illegal for a person to “commit” jury nullification. There is not a thing a judge can do about a juror who nullifies the law, so they (and prosecutors) “lie” when they tell a juror that they *must* follow the law. The problem is usually not with jurors nullifying the law in a defendant’s favor, but more that they don’t follow the law when they refuse to convict when there is not proof beyond a reasonable doubt. See Briscoe v. LaHue (US Supreme Court) to see the “real” situation when it comes to perjury by *prosecution* witnesses, and how the Supreme Court winks and nods at perjury (just as many prosecutors do when it comes to their witnessess), while at the same time talking out of both sides of their mouths *claiming* that perjury is “evil.”

Apologies in advance for putting words in people’s mouths. I don’t expect Mr. Balko to respond to this. But I’d like it if patterico agreed or disagreed on my summary. Not that he’s obligated to do so.

It really seems like Patterico and Balko are splitting hairs now. As nearly as I can tell the argument boils down to this:

Patterico: “Jury nullification is fine for things that are grossly wrong and inhumane.”

Balko: “Many things today are grossly wrong and inhumane.”

Patterico: “No they’re not. But even if they were you should never TRY to commit jury nullification.”

No response from balko yet, but it’s well set up for a nice hypothetical about trying to get on a jury to nullify in a slave case.

He and I have been discussing the ethics of jury nullification. It’s something that I can easily do while on vacation, when I’m not following the Web the way I normally do. It’s a more philosophical kind of discussion.

You don’t like it? Tough, that’s what I’m doing now; go somewhere else if you’re bored. The Web is vast.

Eh, if someone thinks that things in the United States are grossly wrong and immoral, they’re a little deluded. That Balko so willingly disregards the laws the other members of his society has made speaks ill of him. As X pointed out, Balko would nullify a constitutionally amended law (the prohibition) just because it didn’t suit him. Here, the people of the US went to all the trouble of passing a constitutional amendment and Balko is giving us the finger.

Look there are somethings that are genuinely wrong. Prohibiting alcohol isn’t one of them. It may be annoying it may be dumb, but it’s not genuinely wrong.

Generally-

In all honesty these threads have been fascinating to me. (I’ve really appreciated the jury experiences post, I’ve never been so I had nothing to add). It’s weird. I’m sure Ms. Judged is a wholly decent person, but reading some of her posts had that oh my, are there really other lawyers who think that way out there affect. Balko in someways is the other extreme, Balko, is the Cartman of the world “Screw you guys, I’m going home!” Cartman may be hilarous but he’s hardly someone to aspire to. All that said, I’d rather live in Ms. Judged’s world than Balko’s.

Your arguments became much more muddy to me when you said this, in another thread, “I would vote to acquit someone charged with the “crimes” of being Jewish, or saving slaves.”

You’ve asked us to take an oath which is absolute to follow the instructions of the judge – not an oath follow the law. You’ve pointed out that it’s lie to agree to an absolute oath with reservations. You have disagreed strongly with those who had reservations against imprisoning people for drug violations. Hmmmm. How many alcohol convictions were nullified by juries during prohibition? A prohibition which was eventually repealled, right?

But you personally have reservations – not just in a hypothetical case, but in a historical case. A real case.

You’ve pointed out that jurors are more often wrong than right. Absolutely! And yet experts are frequently wrong. Doctor’s cut off the wrong legs. Lawyers say the wrong thing and we get mistrials.

It seems to me that the oath which you quoted was designed to remove from juries conscientious, thoughtful people who think about what words mean, just like the Martha Stewart conviction appears designed to cause people to clam up rather than assist the feds in any way.

Speaking as someone who works on systems which people have to use, you are defending a very poor design.

When I was on a jury, I wanted more expertise, information and advice from the judge, not less. I don’t know how anyone can characterize that as arrogant or narcessistic. Even so, there remains the possiblity that the judge will make a mistake, or that the whole of the law itself will be seen to produce a miscarriage of justice. That’s hardly surprising. Do our legislatures really manage to think of all the possible unjust side effects of the various laws they write?

I write computer programs, and it is extremely hard to write programs which produce the right results even when we are in control of the entire system. When we add in the human factor things end up messy, messy, messy.

And then we have the whole problem of legislatures working to remove discretion from the judiciary. Wow. To think that a legislator can think of every mitigating circumstance which might befall a hapless defendant. My state representative is smart as a whip, but I don’t think he’s up to that.

Somehow you want me to ignore my conscience and my forty-six years of knowledge and living on the planet to follow an absolute oath to follow in every jot and every tittle the instructions of one man.

And then you wonder when I say I cannot follow such an oath, and lament it.

So, would you lie in voir dire in a case of killing Jews or saving slaves?

You’ve mischaracterized, I’m sure unintentionally, a lot of my opinions in just one comment.

No doubt. But how about addressing my problem, which is different from Balko’s. I want to serve on juries. It’s my duty as a citizen. How can I serve on that jury and take that oath? You have reservations. So you end up on a jury, and, as the case progresses, you find they are trying someone that you would resign rather than prosecute because it would cause a miscarriage of justice. What do you do? How can I take an absolute oath, when I could be forced to break it?

I’m not going to lie under voir dire. If the FEC wants me to try a McCain-Feingold case, for example, I’ll tell them I think it isn’t constitutional. I won’t try to get on that jury. But I cannot be absolutely certain that the court won’t violate my conscience.

P.S. I meant jurors are more often wrong than right when they think they know the law better than the judge. And, come to think of it, that was Federal Dog’s position. I’m not trying to mischaracterize people, I’m trying not to leave important points out. Sorry.

If an oath to the court is considered sacred then why do courts routinely require witnesses to break their oaths? This happens every time the rules of evidence prevent a witness from telling the whole truth. The whole of the truth allowed by the rules of evidence is not the whole truth and if the court regards the two as equivalent then the court lies.

Also there is the principle that an oath taken under duress is no true oath. This means that any oath taken by an unwilling witness is a fraud.

I regard jury nullification as desirable safety vale but believe that at present it comes at too high a price. I am opposed to jury inscruitability because it cripples the appeal system. Appelate courts should know rather than have to speculate about the reasons for a jury verdict. Much of the desirable effect of jury nullification could come from an expansion of the defense of necessity.

The oaths of jurors cannot be taken any more seriously than the oaths that witnesses are required to violate. If oaths are sacred then they should not be used as window dressing.

I think that this is one of the better threads I’ve seen. Most of the people are pretty open minded and seem to feel that there are reasonable arguments to the contrary. It’s especially nice to see the ‘main’ characters, patterico and Balko admit when the overstate their case and position.

I still think that the main difference between their points of view is the extent to which they feel nullification is necessary at this time.

The next biggest difference is how much weight they give the law.

More putting words in people mouths.

Patterico: “The law is pointless, counter productive, and takes away people’s freedom. But it’s the law and we must live by it.”

What is a juror’s duty when a prosecutor asks a vague or broad question, one in which he genrally agrees, but sees some aspects that bother him? Is it lying to say that he agrees? Does he have a duty to question the boundaries? Or probe for hidden qualifications?

Let’s say that the question regards the marijuana laws, and he generally agrees that marijuana should be illegal, but has reservations about medical marijuana. But the prosecutor never asks about that directly. In the course of the trial, it becomes clear that the defendant’s use could have been for medical reasons — it’s hard to tell because everyone is skirting the issue, but the defendant is an AIDS patient with cancer.

Does one have to speak up and ask to be excused? Does the juror have to continue to ignore his growing reservations because the actual words “medical marijuana” haven’t been said? Who is lying to whom?

Or does the juror do his best to judge the facts he has in light of his own conscience? Is this potentially nullification? (perhaps) Is it perjury? Is it wrong?

I really enjoyed the flood of responses that came to your invitation to post jury experiences. As a criminal defense attorney, the responses were both enlightening and scary.

But I take exception to your use of “Clintonesque” to characterize a misdirection. Bush answers that Iraq has nothing to do with 9/11 (press conference) and then embarks on a series of speeches to connect his ridiculous war to protecting our streets???

“can you follow the law?”
“i sure can!”
(i can follow a lot of things, all the way from karl marx to groucho marx if i want to, and your question begs the premise of what, exactly, the law is.)
“are you willing to follow the law?”
“oh yes.”
(as of this precise moment in time, i have absolutely no illegal inclinations operating on me. i am not going to light a joint three rows back from the front of your gallery. i am not going to charge the bench or the counsel table and try to take out a player. i am not going to indecently expose myself…)
“will you follow the court’s instructions?”
(tougher question. “can” instead of “will” would have been a breeze. the most honest answer “i’d have to see the court’s instructions in context first.” other commenters have noted that prospective promises broken do not constitute perjury, as opposed to present facts misrepresented.)
i don’t know if i could lie to get on a jury, i don’t know that i wouldn’t, if not lie, do one of my myriad spontaneous antisocial riffs just to get off a jury if i didn’t feel like serving, but i don’t know what i’d do if i sensed that jurors were being selected for sheepful compliance to state directives and i alone could prevent a grave injustice.

To me, the solution to those problems is in proper charging. IANAL, but isn’t there something like “homicide in the depths of dispair”? rather than “intentional murder” that might be both more descriptive of the crime, and more palatable to a jury?

“If an oath to the court is considered sacred then why do courts routinely require witnesses to break their oaths? This happens every time the rules of evidence prevent a witness from telling the whole truth.”

Nobody here has addressed Lloyd’s very cogent point, which deals in a fact. We’re talking about “mental reservations” forced upon witnesses by the court. This is a fundamental corruption of everything that a court proceeding should be about, and it is quite absurd that courts — or their defenders — should then complain about matters of truth coming from the witness box.

Repeat: Lloyd is crucially correct, and his remark — and its import — slid right past everyone here.

I am reserving judgment on the facts of that case. But if I were sitting on the jury in that case I would want the defendant to take the stand and confess to the facts — no weaseling, no techicalities, no affirmative defenses — before I would nullify. And if I believed that the victim had in fact molested the defendant’s two-year old I would vote not guilty regardless of the court’s instructions (nullify). However, if the defendant demanded the protections the law provides him — right against self-incrimination, proof beyond a reasonable doubt, suppression of “illegally” obtained evidence, even affirmative defenses or claims of diminished capacity — I would not nullify. If he claims the protection of the written law he gets judged according to the written law. (But then what would I do, entirely hypothetically speaking, about the victim’s brother who guns down the defendant as he steps out of the courthouse after we acquitted him?)

There is a less drastic way to counter a bad law or an unfair outcome. Jurors can state publicly that their conviction verdict, while legally correct, is unjust. They can jointly appeal for a pardon in the name of humanity. If all the jurors made that appeal, that would have a high probability of getting the desired result.

Here’s one example: In the Richard Paey case, jurors publicly expressed their dismay when they learned after the verdict that thanks to mandatory minimums, the paraplegic Paey would be going to prison for 25 years for the crime of illegally obtaining painkillers that his doctor in another state had been treating him with (prosecutors, who had no medical training, determined that Paey didn’t need the high doses his doctor says he needed). They thought he’d get probation.

To this day, the guy is in prison. In fact, he was then switched to a maximum security prison when prison officials learned that he’d told his story to a NY Times columnist.

Paey’s story has been in the NY Times, 60 Minutes, ABC News, and all over the Internet. There’s certainly no shortage of publicity. Jeb Bush still refuses to grant him a pardon.

Oh, and while he’s in prison, the state of Florida now gives Paey the pain medicine he needs — at dosages higher than what the prosecutors said was excessive when he had gotten it himself.

Several of the jurors who convicted Paey now say that had they known what would happen to him, they’d have voted to acquit, even though they still think he was guilty of illegally obtaining the medication.

If jury nullification isn’t illegal, then why not answer honestly about following the law? In any case, there are plenty of laws out there – the Constitution, and most of the other laws that violate it in one form or another.

I do find it humorous that in a country where there are routine violation of liberty, and people being locked up for not causing any person harm, some are getting their panties all twisted up over the thought of having to maybe not be completely open and honest with the Machine.

If you’re not willing to – ok I’ll say it – LIE – in order to potentially save a political prisoner…you are a pathetic excuse for a human being.

Did the jurors do the sentencing? If not, why did they believe that the defendant would get probation?

As for evidence law (mentioned in other posts), exclusion of certain forms of unfairly prejudicial evidence is proper. Juries properly convict based on the facts of the contested event and law governing it, not on irrelevant and incendiary evidence about unrelated events. This is to protect defendants from juror emotion and prejudice. I must wonder why people are seeking to unfairly prejudice defendants by convicting on irrelevant and inflammatory evidence, as opposed to the facts of the event and relevant law.

39 & 40. I actually had an open and shut (for the prosecution) drug case with a mandatory minimum where the defendant did what I described in my comment #38. The clemency petition included a letter from the trial judge recommending clemency. Clemency was granted but not outright pardon. My client served a little time in minimum security/work release — about as much as the judge wrote he would have sentenced him to had he been allowed the discretion. The system worked. Nobody can be said to have violated his oath or shirked his duty. I understand that you guys are just philosophizing but we are very far removed from a system that makes it illegal to have had a Jewish grandparent or to help escaped slaves.

Patterico, sorry to offend you, I didn’t meean to. I was actually criticising Balko. I was referring to the old logic course conundrums of how to deal with men who say ‘Everything I say is a lie’ or ‘Anything I say might be a lie’.

Balko seems to be in the second category and he must accept the logical outcomes of his statements.

We almost all will lie under enough pressure but Balko has revealed exactly how much, or how little, it would take. I was disappointed in his posts and his attitude.

take a jab at my credibility, implying this time that someone who would mislead to get onto a jury in order to prevent an injustice would also lie on his blog to further the radical libertarian agenda.

Granted, you repeatedly say you are NOT accusing Balko of lying on his blog. But you also say this:

But the reasoning he (Balko) uses to justify lying to the court, it seems to me, could be used to justify these other dishonest acts as well.

To me, that certainly qualifies as taking a jab at Balko’s credibility, and casting implied doubt about his truthfulness. It’s like saying “But Brutus is an honorable man.”

You obviously didn’t intend the remark to be taken that way, but it sure had that implication to me.

Moreover, I would have to agree with that implication. Balko is a bit too eager about instructing potential jurors on how to lie misdirect for my taste. The inevitable question is, where else would Balko think lying is justified? That is an unappetizing can of worms, but Balko’s the one who opened it.

Granted, you repeatedly say you are NOT accusing Balko of lying on his blog. But you also say this:

But the reasoning he (Balko) uses to justify lying to the court, it seems to me, could be used to justify these other dishonest acts as well.

To me, that certainly qualifies as taking a jab at Balko’s credibility, and casting implied doubt about his truthfulness. It’s like saying “But Brutus is an honorable man.”

Bradley:

Let’s assume that I want to make the point that his logic would justify something like lying on his blog, even if I don’t think he’d actually do it.

How would you suggest I make my point without being read as implicitly accusing him of doing so?

Because for the life of me, having explicitly said about 4 times I wasn’t making that accusation, I can’t imagine how to make that argument without having people like you read something into it that I REPEATEDLY SAY I AM NOT CLAIMING.

I’ve carefully re-read what you had written, and think you said it the right way. Sorry for what I said earlier about it. The responsibility for any loss of credibilty on Balko’s part rests with him alone for what he said.

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